Smith & Others v M.O.D.
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Owen |
| Judgment Date | 30 June 2011 |
| Neutral Citation | [2011] EWHC 1676 (QB) |
| Court | Queen's Bench Division |
| Date | 30 June 2011 |
| Docket Number | Case No: HQ08X03052 HQ09X00819 |
[2011] EWHC 1676 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Owen
Case No: HQ08X03052
HQ08X00326
HQ09X00819
Robert Weir QC, Jessica Simor (instructed by Hodge, Jones & Allen) for Smith, Ellis and Redpath Claimants
Richard Hermer QC, Phillipa KaufmanQC, Ben Silverstone (instructed by Leigh Day & Co) for Allbutt, Twiddy and Julien Claimants
James Eadie QC, Robert JayQC, Sarah Moore, Karen Steyn, (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 9 – 11 May 2011
Introduction
The claims before the court concern the violent death or injury of British troops whilst on active military service in Iraq. They fall into two categories, the Snatch Land Rover claims and the Challenger claims. The Snatch Land Rover claims arise out of the deaths of three soldiers, Private Phillip Dale Rivers Hewitt on 16 July 2005, Private Lee Ellis on 28 February 2006 and Lance Corporal Kirk James Redpath on 9 August 2007. Each died when an improvised explosive device ('IED') was detonated beside the Snatch Land Rover in which they were travelling. It is alleged that they died as a result of breach of Article 2 of the European Convention on Human Rights (the 'ECHR'), namely that the defendant was in breach of a positive obligation under Article 2 to take reasonable steps to protect the lives of soldiers from the foreseeable risk presented by IEDs, both in relation to the procurement and to the deployment of appropriately armoured vehicles. One of the Snatch Land Rover claims, the case of Ellis, also alleges that the failures on the part of the defendant amounted to a breach of the common duty of care.
The claims based on the ECHR raise an issue of jurisdiction under article 1, namely whether a claim under Article 2 can be brought in respect of a death occurring outside the UK's Convention jurisdiction on the basis that an alleged anterior failing occurred within the jurisdiction, and secondly if that question be answered in the affirmative, an issue as to the scope of the substantive obligation under Article 2.
The Challenger claims arise out of a 'friendly fire' incident between two UK Challenger II tanks in Iraq on 25 March 2003, in which one Challenger II tank fired on another, believing it was firing at enemy forces. Corporal Stephen Allbutt died in the incident and Deborah Allbutt's claim is brought in respect of his death. The claims of Trooper Daniel Twiddy and Trooper Andrew Julien are brought in respect of personal injuries suffered in the same incident. The claims allege breach of the common law duty of care on the part of the defendant, namely the failure to ensure that the Challenger tanks were properly equipped with devices that on the balance of probability would have prevented the incident, and secondly the failure to ensure that adequate vehicle recognition training was in place for British troops. The claims do not allege negligence in relation to any acts or omissions in the field of battle.
The central issue raised by the common law claims is the scope of the principle of combat immunity.
The applications
The defendant seeks to strike out the statements of case pursuant to CPR r.3.4(2)(a), on the grounds that they disclose no reasonable grounds for bringing the claims, or in the alternative seeks summary judgment pursuant to CPR r.24.2(a)(i) on the grounds that the claims have no real prospect of success.
In short, the defendant submits that any alleged shortcomings in respect of:
i) the conduct, command and control of particular military operations;
ii) the development, procurement, availability or use in military operations of military equipment; and
iii) the adequacy of training given to UK Armed Forces personnel prior to or during military deployment;
raise issues of a political and military nature which are not capable of constituting a breach of Article 2 nor of founding a claim in negligence.
It is further asserted that no claim can be brought against the defendant on the basis that it has failed to protect an individual's life contrary to Article 2 where the death of the individual has occurred outside the UK's Convention jurisdiction.
The tests for strike out and summary judgment
CPR r.3.4(2)(a) provides that:
"The court may strike out a statement of case if it appears to the court:
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim."
CPR r.24.2 provides that:
"The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –
(a) it considers that —
(i) that claimant has no real prospect of succeeding on the claim or issue;
… and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial."
As Lord Woolf MR observed in Swain v Hillman [2001] 1 All ER 91 at 92h, in a judgment subsequently approved in Three Rivers District Council v Bank of England No 3 [2001] UKHL 16, there is a relationship between r.3.4 and r.24.2. He continued –
"However, the power of the court under Pt 24, the grounds are set out in r.24.2, are wider than those contained in r3.4. The reason for the contrast in language between r3.4 and r24.2 is because under r3.4, unlike r24.2, the court generally is only concerned with a statement of case which it is alleged displays no reasonable grounds for bringing or defending the claim".
That said, and as Lord Hope noted in Three Rivers DC, there may in reality be little difference in the tests to be applied in relation to the exercise of the powers to strike out and to give summary judgment.
The principles upon which such powers should be exercised were conveniently summarised by Potter LJ in (1) Partco Group Ltd (2) UGC Ltd v (1) James Philip Wragg (2) Christopher George Scott [2002] EWCA Civ 594 at paragraphs 28 to 29 of his judgment:
"It seems to me that the following principles are well established, at least as articulated in relation to summary disposal under Part 24 of the CPR. (1) The purpose of resolving issues on a summary basis and at an early stage is to save time and costs and courts are encouraged to consider an issue or issues at an early stage which will either resolve or help to resolve the litigation as an important aspect of active case management: see Kent v Griffiths [2001] QB 36 at 51B-C. This is particularly so where a decision will put an end to an action. (2) In deciding whether to exercise powers of summary disposal, the court must have regard to the overriding objective. (3) The court should be slow to deal with single issues in cases where there will need to be a full trial on liability involving evidence and cross examination in any event and/or where summary disposal of the single issue may well delay, because of appeals, the ultimate trial of the action. (4) The court should always consider whether the objective of dealing with cases justly is better served by summary disposal of the particular issue or by letting all matters go to trial so that they can be fully investigated and a properly informed decision reached. The authority for principles (2)-(4) is to be found in: Three Rivers District Council v Bank of England (No.3) [2001] UKHL 16 ; [2001] 2 All ER 513per Lord Hope at paras 92–93 (pp.541–542), consideringSwain v Hillman [2001] 1 All ER 91at 94–95;Green v Hancocks [2001] Lloyds Rep. PN212, per Chadwick L.J. at para 53 page 219, Col. 1; andKillick v Price Waterhouse Coopers [2001] Lloyds Rep. PN17per Neuberger J. at p.23 Col.2, 2–27.
28. (5) Summary disposal will frequently be inappropriate in complex cases. If an application involves prolonged serious argument, the court should, as a rule, decline to proceed to the argument unless it harbours doubt about the soundness of the statement of case and is satisfied that striking out will obviate the necessity for a trial or will substantially reduce the burden of the trial itself: see the Three Rivers case per Lord Hope at 94–98 (pp.542–544), considering the Williams & Humbert case. (6) It is inappropriate to deal with cases at an interim stage where there are issues of fact involved, unless the court is satisfied that all the relevant facts can be identified and clearly established: see Killick v Price Waterhouse at 20, Col.2 and 21 Col.1. (7) It is inappropriate to strike-out a claim in an area of developing jurisprudence. In such areas, decisions should be based upon actual findings of fact: see Farah v British Airways (unreported) 6th December 1999 (CA) per Lord Woolf M.R. at para 35 and per Chadwick L.J. at para 42, applying Barratt v London Borough of Islington [1999] 3 WLR 83 and X (Minors) v Bedfordshire CC [1995] 2 AC 633 at 694 and 741."
No evidence has been filed in support of the applications and accordingly I must proceed on the premise that the claimants will prove the facts relied upon in their pleaded cases. Furthermore the core facts are not in dispute, and as Neil LJ said in Mulcahy v Ministry of Defence [1996] QB 732 (CA), in which the Court of Appeal struck out the claim by application of the principles that have come to be known as the combat immunity:
"Where … the court is satisfied that additional facts will not change the framework of the claim and that the opposing arguments have been fully deployed the court should not shrink from deciding whether the application to strike out is well-founded in law. At the same time the Court must take account of Lord Browne-Wilkinson's admonition that it is normally inappropriate to decide novel questions on hypothetical facts. But the novelty of the question of law is not an absolute barrier. It is to be remembered that the...
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Susan Smith (on her own behalf and as administrator of the Estate of Philip Hewett, Deceased) (1st Appellant) Colin Redpath (on his own behalf and as Executor of the Will of Kirk James Redpath, Deceased) (2nd Appellant) Courtney Ellis (A Child) by her Litigation Friend Karla Ellis and Karla Ellis (3rd and 4th Appellants) v The Ministry of Defence
...IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION The Hon Mr Justice Owen [2011] EWHC 1676 (QB) Royal Courts of Justice Strand, London, WC2A 2LL IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S B......
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Smith v Ministry of Defence
...of their deaths under article 2. 14 The strike-out applications were heard by Owen J, who handed down his judgment on 30 June 2011: [2011] EWHC 1676 (QB), [2011] HRLR 795. He struck out the Snatch Land Rover claims under article 2 on the ground that Pte Hewett and Pte Ellis were not within......